Why corporate personhood is unconstitutional….


The Court overruled Austin v. Michigan Chamber of Commerce, which had previously held that a Michigan campaign finance act that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments.

Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), was a landmark decision by the United States Supreme Court holding that corporate funding of independent political broadcasts in candidate elections cannot be limited — because of the First Amendment…. The decision reached the Supreme Court on appeal from a January 2008 decision by the United States District Court for the District of Columbia…. The Court struck down a provision of the McCain–Feingold Act that prohibited all corporations, both for-profit and not-for-profit, and unions from broadcasting “electioneering communications.”[2] An “electioneering communication” was defined in McCain–Feingold as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or thirty days of a primary. The decision overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003).[4] McCain–Feingold had previously been weakened, without overruling McConnell, in Federal Election Commission v. Wisconsin Right to Life, Inc. (2007). The Court did uphold requirements for disclaimer and disclosure by sponsors of advertisements. The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties.[5]

This dangerous decision has basically shifted power from We, the People to a corporate owned and controlled government. Extending the rights of natural persons to corporate persons, or legal persons, is the issue at hand. It is called “corporate personhood.”

See http://en.wikipedia.org/wiki/Corporate_personhood:

The corporate personhood debate refers to the controversy (primarily in the United States) over the question of what subset of rights afforded under the law to natural persons should also be afforded to corporations as legal persons. In the United States, corporations were recognized as having rights to contract, and to have those contracts honored the same as contracts entered into by natural persons, in Dartmouth College v. Woodward, decided in 1819. In the 1886 case Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394, the Supreme Court recognized that corporations were recognized as persons for purposes of the Fourteenth Amendment.[1][2] ….

Thomas Jefferson wrote in a 1816 letter to George Logan:[13]

I hope we shall… crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country.”

As is often the case, I tend to come down on the side of Jefferson on this issue.

“There is a substantial shift in global power to transnational capital.” — Noam Chomsky


There’s much excited talk these days about a great global shift of power, with speculation about whether, or when, China might displace the US as the dominant global power, along with India, which, if it happened, would mean that the global system would be returning to something like what it was before the European conquests. And indeed their recent GDP growth has been spectacular. But there’s a lot more to say about it. So if you take a look at the UN human development index, basic measure of the health of the society, it turns out that India retains its place near the bottom. It’s now 134th, slightly above Cambodia, below Laos and Tajikistan. Actually, it’s dropped since the reforms began. China ranks ninety-second, a bit above Jordan, below the Dominican Republic and Iran. By comparison, Cuba, been under harsh US attack for fifty years, is ranked fifty-second. It’s the highest in Central America and the Caribbean, barely below the richest societies in South America. India and China also suffer from extremely high inequality, so well over a billion of their inhabitants fall far lower in the scale. Furthermore, an accurate accounting would go beyond conventional measures to include serious costs that China and India can’t ignore for long: ecological, resource depletion, many others.

These common speculations about a global shift of power, which you can read all over the front pages, disregard a crucial factor that’s familiar to all of us: nations divorced from the internal distribution of power are not the real actors in international affairs. That truism was brought to public attention by that incorrigible radical Adam Smith, who recognized that the principal architects of power in England were the owners of the society—in his day, the merchants and manufacturers—and they made sure that policy would attend scrupulously to their interests, however grievous the impact on the people of England and, of course, much worse, the victims of what he called “the savage injustice of the Europeans” abroad. British crimes in India were the main concern of an old-fashioned conservative with moral values.

To his modern worshippers, Smith’s truisms are ridiculed as, quote, “elaborate theories of how world history was being manipulated by shadowy corporatist/imperialist networks.” I’m quoting New York Times thinker David Brooks. It’s one of the many illustrations of the intellectual and moral decline of what’s called “conservatism” from the understanding of its heroes.

Actually, in the interests of full disclosure, I should mention that I’m identified as the villain who adopts Adam Smith’s heresy, as in fact I do. Well, bearing Smith’s radical truism in mind, we can see that there is indeed a global shift of power, though not the one that occupies center stage. It’s a shift from the global work force to transnational capital, and it’s been sharply escalating during the neoliberal years. The cost is substantial, including the Joe Stacks of the US, starving peasants in India, and millions of protesting workers in China, where the labor share in income is declining even more rapidly than in most of the world.

In my experience, part of the problem with public debate — as is true with conflicts over unenforceable or poorly written contracts — is the issue of clarity that comes from clearly defined terms. This is particular true in discussing what a successful economy really looks like. There is a saying: “If you can’t measure it; you can’t manage it.” — source undeterminable. And that is true for terms: if you can’t define it in a measurable way, there is no clarity in the debate. Politicians and political entities have made a living out of rewriting history by redefining terms, or at least changing the connotation of terms, which, in essense, is redefining them. The same is true with statistics and statistical analysis. There was a book written by rrell Huff in 1954 (http://en.wikipedia.org/wiki/How_to_Lie_with_Statistics):

The book is a brief, breezy, illustrated volume outlining common errors, both intentional and unintentional, associated with the interpretation of statistics, and how these errors can lead to inaccurate conclusions. It has become one of the best-selling statistics books in history, with over one and a half million copies sold in the English-language edition, even though the monetary examples have become dated because of inflation.[1] It has also been widely translated.

Themes of the book include “Correlation does not imply causation” and “Using Random Sampling“. It also shows how statistical graphs can be used to distort reality, for example by truncating the bottom of a line or bar chart, so that differences seem larger than they are, or by representing one-dimensional quantities on a pictogram by two- or three-dimensional objects to compare their sizes, so that the reader forgets that the images don’t scale the same way the quantities do.

This book bears reading, because it points out how Madison Avenue has so manipulated our thought processes and our view of the world until we accept nonsense as grounded in fact almost without question.

In the piece referenced above, Chomsky goes on to say:

To understand the public mood, it’s worthwhile to recall that the conventional use of GDP, gross domestic product, to measure economic growth is highly misleading. It’s a highly ideological measure. There have been efforts to devise more realistic measures. One of them is called the General Progress Indicator. It subtracts from GDP expenditures that harm the public, and it adds that value of authentic benefits. Well, in the US, the General Progress Indicator has stagnated since the 1970s, although GDP has increased, the growth going into very few pockets. That result correlates with others—for example, the studies of social indicators, the standard measure of health of a society. Social indicators tracked economic growth until the mid-’70s. Then they began to decline, and they reached the level of 1960 by the year 2000. That’s the latest figures available. The United States is one of the very few countries that has no government inquiry into social indicators. The correlation with financialization of the economy and neoliberal socio-economic measures is pretty hard to miss, and it’s not unique to the United States, by any means.

Now, it’s true that there’s nothing essentially new in the process of deindustrialization. Owners and managers naturally seek the lowest labor costs. Occasionally there are efforts to do otherwise. Henry Ford is the famous example, but his efforts were struck down by the courts long ago. So, in fact, it’s a legal obligation for corporate owners and managers to maximize profit. One means of doing this is shifting production. In earlier years, the shift was mostly internal, especially to the Southern states. There, labor could be more harshly repressed. And major corporations, like the first billion-dollar corporation, the US Steel Corporation of the sainted philanthropist Andrew Carnegie, could also profit from the new slave labor force that was created by the criminalization of black life in the South after the end of Reconstruction in 1877. That’s a core part of the American industrial revolution, which continued until the Second World War. That’s actually being reproduced in part right now, during the recent neoliberal period. The drug war is used as a pretext to drive the superfluous population, mostly black, back to the prisons, also providing a new supply of prison labor in state and private prisons, much of it in violation of international labor conventions. In fact, for many African Americans, since they were exported to the colonies, life has scarcely escaped the bonds of slavery, or sometimes worse.

I understand what he’s saying, because I live in the South and have witnessed the disparity in wages that is the result of the desperation for jobs — any jobs at any payrate — that comes with economic depression. And the myth that living expenses are lower, therefore wages can be lower is just that: a myth, not reality in comparison to cities of equal size throughout the country (with the exception of metro areas like Atlanta, DC, NYC, Boston, Chicago, LA, etc.).

Make no mistake, we are watching the foundation for modern serfdom being laid as we speak.

“Those who do not learn from history are doomed to repeat it.” – George Santayana quotes (Spanish born American Philosopher, Poet and Humanist who made important contributions to aesthetics, speculative philosophy and literary criticism. 1863-1952)

The SCOTUS based their decision in Citizens United on the claim that corporations have a right to freedom of speech and their previous decisions that expanded corporate personhood to include the rights of natural persons (live human beings). This basically equates natural persons (live human beings) with legal persons (corporations and other legal entities that include special interest groups, unions, etc.). But the previous decisions they have made using as justification the 14th Amendment to the Constitution violates what I believe (as do many others) the framers intended. Had that not been the case, they would have specifically articulated that corporations and other legal organizations are equal to natural persons. Given the stranglehold that the crown and business entities like the East India Trading Company had on the law in England, I cannot imagine they felt this way.

The 14th Amendment was intended to abolish slavery and raise all natural persons (human beings) to equal legal status — equal rights and equal protection under the law. It was not intended to turn a business into a human being in terms of the rights protected in the Bill of Rights, etc. Businesses do not vote (as of yet, though we are headed in that direction).

There is a reason that their decision did not take on the question of how corporate personhood diluted the power and voice of natural persons. It was not mentioned, to my knowledge, in their arguments becvause it contrasts sharply with the framers intent. A corporation has legal rights to enter into contracts and conduct business. In these actions, it can and does speak with one voice (the voice of the proprietors, owners, executive board and stockholders, etc.).

The SCOTUS claimed that because companies are comprised of individuals that are natural persons (executive board members, stockholders, employees), they are to be considered to have equal rights as a natural person (live human being). The flaw in this argument is that the natural persons that comprise a corporation have many individual voices and do not necessarily speak with one voice, certainly not unanimously and consistently and without fear of retribution. In fact, most board decisions are not unanimous. Nor are stockholder votes. And employees cannot speak freely without risking their jobs (fear of retribution), so they would be speaking under duress if they are allowed to speak at all and certainly if they are speaking in their capacity as employees of the company.

That is not free speech. In fact, it has the likelihood, if not certainty, of repressing the free speech of the natural persons that comprise the corporation if their position in the company might be at risk of loss should they not agree with the majority opinion or even the minority opinion if it is management’s opinion.

That is the exact opposite of the intent of freedom of speech as it is articulated in the Bill of Rights.

Very seldom, in situations where individuals feel safe to speak their minds freely without risking retribution from the majority or the powerful, do any group of natural persons speak with one voice without exception. Therefore, it is erroneous and actually unconstitutional to consider that corporations or any other organization of natural persons (even ones where its members join voluntarily) should have the power to represent a group of natural persons in equity with the same rights as each of the individual natural persons.

This decision actually weakens the voice of natural persons when more powerful legal entities like corporations and special interests can speak more loudly (with more money to back it up) than they can, especially in government and the political arena. It is contrary to the founding principles of our Constitution, which considered the rights and voice of the individual (here, natural person) to be more important than the government or any other legal entity.

That is why corporate personhood should be abolished. When corporations, who control their employees and, to an extent, their customers, are allowed equal consideration to a natural person, it is misleading to think that the consideration they enjoy is actually equal, since their wealth and power gives them a louder, more powerful voice. And these louder and more powerful voices can often be at odds with the best interests of the collective individual natural persons we call We, the People.

How do we fix it? Campaign finance reform will require Congress to reverse Citizens United. It may require a constitutional amendment to define what a “natural person” v. a “legal person/legal entity” is and which rights legal persons/entities cannot enjoy and, more importantly, which rights are reserved for natural persons only.

Then, and only then, can we enact meaningful campaign finance reform. Here are my suggestions:

1. Restrict campaign contributions to a maximum individual amount per person for each registered voter in the candidate’s district (city, county, ward, district, state or country, depending on what office the candidate is running for). For a U.S. Representative, that means only the registered voters in his or her congressional district are allowed to contribute to the candidate’s campaign and only for the maximum individual amount. For a U.S. Senator, that would be the registered voters in his or her state. For President, it would be the total registered voters in each state for the entire country.

2. Political parties can use contributions to the party, in general, to fund “get out the vote” and “voter registration” drives. They can supplement an individual’s campaign fund only to the total limit allowed for that district, state or the country, depending on the office in contest. That means if the U.S. Representative have 1,000 registered voters (natural persons of voting age that can provide a state ID and voter registration card) and the contribution limit is $1,250 per person, the total amount the candidate can have, whether it be from individual contributions or his political party supplement is 1,000 x $1,250 = $1.25M.

3. No candidate or candidate’s family member can contribute more than the maximum individual amount per registered voter, and any member of the candidate’s family that contributes must be a registered voter in that district.

4. No other candidate in any other race can transfer funds to any other candidate.

5. No corporation or special interest can contribute to individual campaigns or political parties. They are restricted to running “issue” ads that do not specify a specific candidate or party in any identifiable way (picture, name, ID, party affiliation).

6. Candidates cannot borrow money personally and campaigns cannot borrow money as a political campaign from anyone, any time, anywhere, ever.

7. The length of campaigns must be limited to approximately six months beginning on Memorial Day weekend and ending on the second Tuesday in November (election day).

Now, why these restrictions?

We want the people’s voice to determine the candidates that are slated on the ballot on election day as well as the winner of the election. We do not want any candidate to have special advantage because of their personal wealth, in other words, a rich person cannot buy an elected office with his own money. We want only the voters in the district to be able to speak as to who represents them in Congress or in the White House. We want elected officials to demonstrate that they can successfully manage and operate on a fixed budget. And we want our elected officials to actually do something besides run for re-election while they are in office.

The other arm of campaign finance reform would be accountability:

1. Candidates, their campaign manager(s), media manager(s), the company producing the campaign advertising (broadcast media or printed material) and the network broadcasting or distributing the ads are subject to the same “truth in advertising” and libel laws as companies advertising soap flakes. Each officer of the campaign mentioned can be held legally liable for unsupported allegations against other candidates or parties or outright lies or misrepresentations of factual content. The same is true for any claims regarding the candidate, his or her personal and work history, arrest records, tax returns, military conscripjtion compliance, military service records, business ownership, executive boards and any regulatory infractions or lawsuits and legal status of businesses owned or controlled by the candidate, and the candidate’s arrest records, convinctions and legal status. Reporting rumors as rumors that cannot be substantiated with evidence as facts is libelous. Likewise, fraudulently claiming you have a college degree and being unwilling to support that claim with evidence will not be allowed.

2. Candidates, their campaign manager(s) and their campaign’s CFO or Financial Manager are legally liable for verifying the legitimacy of all monies collected, who contributed, how much they contributed, a copy of their state driver’s license (establishing residency) and voter’s registration card on file, the amount collected, and how it was collected (internet, in person, by mail, cash, credit card, check).

3. Candidates, their campaign manager(s), the political party who is running them, and the state Secretary of State responsible for creating the ballots must be able to provide evidence that the candidate meets the federal or state constitutional requirements to run for the office. Just like the I-9 residency verification process, candidates must provide a birth certifcate, a state driver’s license, tax returns and a voter’s registration card demonstrating that he or she meets the requirements to run. Certified copies of these forms must be on file at campaign headquarters, party headquarters and the state Secretary of State’s office and available for public review upon request.

4. Candidates must divulge all business and financial holdings, without exception, including any “dark investments” like derivatives. All the candidates assets must be held by U.S. companies and U.S. banks (no hidden cash in the Caymans, etc.). The candidate cannot hold any investments in foreign corporations and cannot represent foreign governments as a lobbyist or in any other capacity. If the candidate’s spouse is serving in a professional capacity as a lobbyist or works for or represents a government contractor, foreign corporation or foreign government, that should be considered a conflict of interest in equal standing with the candidate themselves holding the same position while running for office or serving their term.

That will avoid all the nonsense of whether a candidate is “legal” and whether they are abiding by the rules. This will allow the public to focus on the real issues at hand.

The next step will be to shut the revolving door between the President’s cabinet and Wall Street and “K” Street, particularly in the Treasury Department and any regulatory agencies. We can accomplish this by requiring any elected official or his or her spouse to have to wait at least two years after leaving office before he or she can work as a lobbyist or for a government contractor. Additionally, any appointed official or regulatory official or agent must divest themselves of personal holdings in any company that operates in the industry or area that their position will require them to manage or regulate, and after that person has left the government, they will not be allowed to work for or hold interest in any company that operates in any industry they previously managed or regulated in their government position for a minimum of two years. This will avoid conflict of interest. In other words, Paulson would not be able to jump from Goldman Sachs into Treasury and write legislation that so directly benefitted Goldman Sachs.

Disclosing which lobbyists or private companies participated in the writing of legislation before Congress is another way we can prevent corporations from using Congress as their personal agents.

And, finally, restricting ownership and control of broadcast journalism to companies wholly owned and controlled by journals and independent news bureaus. It is time to stop corporations from controlling the message and dessiminating propaganda as hard, factual news. Freedom of the Press cannot be a reality if the press is not independent of corporate special interests and influence.

When we have accomplished this, We, the People, will have our power back. We will once again control our government and ensure a truly free and independent press. There can be no effective self-governance without informed consent.


About Laura Schneider

Retired IT consultant (disabled), musician and animal lover. I support the constitutional concept of Right of Privacy and no discrimination against any person based on race, religion, ideology, gender, sexual preference or disability. I am very concerned about the erosion of our constitutional rights and protections under GWB (and even this administration). I strongly oppose torture, rendition or illegal search and/or seizure (without a warrant) and warrantless wiretapping. I believe that education is our best hope of a bright future for our children. Knowledge is power, and that's the kind of authority (Biblically speaking) that our children must have in order to be successful in a 21st century world.
This entry was posted in Citizens United v. Federal Election Commission, civil liberties, civil rights, Constitution, democracy, election reform, freedom of speech, government corruption, individualism, leadership, political corruption and tagged , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s